V. DIRECTIONS FOR PREPARING THE PARTICULARS AND
CONDITIONS OF SALE IN ORDINARY CASES.

1. As to the particulars.

2. As to the conditions of sale.

1. As to freeholds.

2. As to leaseholds.
3. As to copyholds.

4. Of growing timber.

5. Of life estates, and reversionary interests, policies of insurance, shares in public companies, shipping interests, and of goods, furniture, and other effects.

Particulars or conditions of sale incapable of being altered by parol.]—The preparation of the particulars and conditions of sale requires considerable care and attention. They ought to be clear, explicit, and utterly devoid of doubtful or ambiguous expressions, for, as we have previously observed (ante, p. 20), no verbal explanation by the auctioneer, vendor's agent, the vendor himself, or any person whatsoever, is admissible for the purpose of varying, adding to, subtracting from, or contradicting, anything contained in either the particulars or conditions, &c.

As to the heading of the particulars.]-The particulars should commence as in the advertisement before mentioned (ante, p. 23) with setting out the time and place of sale, the name of the auctioneer, as also of the vendor's solicitor or agent, and that of the vendor or vendors on whose behalf the property is to be sold.

When the estate is sold on behalf of several distinct parties.] —If, as sometimes happens, the estate is sold on behalf of several distinct parties, as, where the property which is to form the subject-matter of sale has been mortgaged to several distinct persons, who have entered into a mutual arrangement to concur in the sale, in such cases the name of the party in whose behalf the particular portion is sold may be set out in the following terms:

"This lot (or these lots, as the case may be) is (or are) sold on behalf of J. S., of &c., gentleman, under the several trusts and powers of sale contained in a certain indenture of release by way of mortgage. Dated the day of

1. As to the Particulars.

Practical directions for preparing particulars of sale.]In framing the particulars of sale, the property should be [P. C.]

D

described with every possible degree of accuracy. The several closes or allotments should be set out, and severally described, specifying their respective qualities; as arable, meadow, pasture, orchard ground, or the like; as also the number of acres, or other quantity of land each close contains. The particulars should also state the nature of the tenure, as, whether the property is freehold, or copyhold, or leasehold.

Propriety of describing the property accurately.]—Where various kinds of property lie intermixed together, the relative proportions which they bear to each other should be distinctly pointed out; and whatever may be the nature of the property, the description of it must never be exaggerated in extent, or any qualities asserted to belong to it which it does not really possess; for such a misdescription will authorize a purchaser who has been misled by it to rescind the contract in toto. As, for example, where an estate is stated to be but one mile from a borough town, from which it is actually four or five miles distant (Duke of Norfolk v. Worthy, 1 Camp. N. P. C. 337); or a vendor contracts to sell an estate with the right of shooting, which latter right he does not possess (Stock v. Rook, 1 T. R. 387); or to sell an estate tithe free, which in point of fact is not so (Stewart v. Alliston, 1 Mer. 26); in every one of which cases the purchaser may vacate the sale, and cannot be compelled to complete the contract upon receiving pecuniary compensation for the decreased value occasioned by any of the above mentioned drawbacks.

Concealment of defects will afford ground for annulling contract.]-The vendor must also be equally careful not to conceal defects, for this, when wilfully done, will afford a purchaser the same grounds for rescinding the contract as in cases of actual misrepresentation: (Shirley v. Stratton, 1 Bro. C. C. 140; see also Cox v. Middleton, 23 L. T. Rep. 6.) Hence where a vendor put up for sale by auction lands described as eligible for building, and after a contract had been made, the purchaser discovered that there existed rights in third parties to have water supplied to them through parts of the land, by means of an underground course, with liberty for such third parties to open, cleanse, and repair the water course, making satisfaction for damage done by them; it was held that the vendor could not, under the circumstances, enforce the contract, and that existence of the easement was not a subject of compensation:

(Shackleton v. Sutcliffe, V. C. Bruce's Court, 10 L. T. Rep. 411.) It is the duty of a vendor, when he puts up property for sale, to inform himself (if he does not know them) of all the particulars of the premises he is going to sell; and in describing them to state every thing material to the condition and value of the property. A purchaser is not supposed to be cognizant of all the circumstances of the property, even if it should appear that he resided close by it. No more knowledge will be imputed to him than may be gathered from the printed particulars of sale, and what any person might derive from ocular inspection of the property (Bradley v. Plummer, 23 L. T. Rep. 329); it is no set-off to misrepresentations made by the vendor, for him to say that the purchaser might have seen the premises, and known the truth: (Cox v. Middleton, 23 L. T. Rep. 6.)

Misdescription as to quantity may be made a subject of compensation.]-But, generally speaking, where the misdescription in the particulars is merely as to the quantity, it is treated as a fit matter for compensation, the amount of which the purchaser will be allowed to deduct out of his purchase money, and this a vendor will be compelled to allow, without showing that the misdescription arose from any fraudulent intent on his part: (Winch v. Winchester, 1 Ves. & B. 375.)

How vendor should_guard against liability for misdescription as to quantity.]-To guard against this consequence, it is usual to stipulate in the conditions of sale, that the numbers of acres advertised as being according to admeasurement are believed to be correct, but are not warranted to be so: (see the form, Concise Precedents, Vol. 1, No. 2, clause 8, p. 7; and see Winch v. Winchester, 1 Ves. & Beam. 375.)

Vendor cannot protect himself against his wilful misrepresentations.]-But the clause we have just alluded to will only afford protection to a vendor who is ignorant of the true extent of the property; for, if it could be shown that he knew what the exact quantity was, and described the property as containing more, the mere insertion of the words, be the same more or less," will not protect him against the effects of his fraudulent statement: (Duke of Norfolk v. Worthy, 1 Camp. N. P. C. 337.)

66

In a recent decision (Leslie v. Thompson, 17 L. T. Rep. 277), a point was raised as to whether, in a case where

beyond the description of the lands, &c., there is a general statement of the total acreage, with the qualification" more or less," the presumption to sell the property in a lump was not negatived? The court held that it was.

Measurement.] Before the passing of the statute 5 Geo. 4, c. 2, where a person entered into a contract for the sale of any specified number of acres, known by estimation of limits, such acres were to be taken according to the estimation of the county where the lands were situate, and not according to the statute measurement: (Morgan v. Tedcastle, Poph. 55; Lloyd v. Bethell, 1 Roll. Rep. 520.) But the law is altered in this respect, by the enactment above alluded to, which directs that in all cases where any special agreement shall be made in respect of any measure established by local custom, the proportion which any such local measure shall bear to any of the said standard measures set forth by that act shall be specified in the agreement, otherwise such agreement shall be null and void.

All incumbrances should be specified, when property is sold subject to them.]-Where property is intended to be sold subject to incumbrances, such incumbrances should be set forth accurately, and the amount of the charge clearly defined, so that a purchaser cannot possibly be misled as to the full extent and nature of it. If omitted, or even if misstated, provided the incumbrances be such as are matter of title, the purchaser may rescind the contract, and cannot be compelled to take the property with any amount of compensation. But incumbrances which are mere matters of conveyance, as mortgages, judgments, or the like, will afford no ground for vacating the sale; and the vendor will be compelled to discharge them; and cannot, in the absence of an express stipulation to that effect, oblige the purchaser to take the property subject to those charges, by allowing him an adequate compensation for them.

As to annuities, and under what circumstances such charges cease to be incumbrances which are matter of title.]-It may be proper here to observe, that although annuities charged on real estates are considered as incumbrances which are matter of title, because a vendor of property so charged has no power or right to compel the annuitants to release their interests; yet this rule will only hold where it is evident the person creating those charges intended that the land should be a continued and subsisting fund for their pay

ment (Elliott v. Merryman, Barnardist. 82; Wynn v. Williams, 5 Ves. 130; Page v. Adam, 10 L. J. (N. S.) 407); for if the lands are at the same time subjected to other charges, which may render a sale of the lands themselves necessary to raise the proper funds to discharge them, as, where a testator devises all his estate, real and personal, to A., subject to the payment of debts, legacies, and annuities, in which case the devisee may always sell to pay the debts and legacies, the annuities will not only cease to be incumbrances which are matters of title, but even of conveyance, as the devisee will be able to make a good title to a purchaser without the annuitant's even concurring in the conveyance (Page v. Adams, supra); and unless the particular debts are specified or scheduled, the purchaser will be exonerated from all responsibility with respect to seeing to the application of the purchase money: (3 Prest. Abs. 360; see also Anon. Mos. 96; Newell v. Ward, Nels. Cha. Rep. 38; Walker v. Smallwood, Ambl. 677; Bailey v. Ekins, 7 Ves. 323; Shaw v. Borrer, 1 Kee. 599; Ball v. Harris, 8 Sim. 485; S. C., 4 Myl. & Cra. 264; Robinson v. Lowther, 23 L. T. Rep. 85.) Neither will the circumstance of some particular debt being specified in the will, where the testator charges his real estate generally with the payment of his debts, create an exception to the rule, that where there is a general charge in a will for the payment of debts, a purchaser of the property so charged is exempted from seeing to the application of the purchase money: (Robinson v. Lowater, 23 L. T. Rep. 17, 85; Storrs v. Walsh, ib. 35.)

Quit rents.]—If the premises are subject to the payment of a quit rent, that fact, as also the amount of rent, should be stated.

How existing leases should be set forth in the particulars.]— In all cases where there are any existing leases of the property, the term for which it is let, and the amount of rent, should be accurately stated. The term "clear yearly rent," in an agreement between vendor and purchaser, means clear of all outgoings, incumbrances, and extraordinary charges, not according to the custom of the country; as tithes, poorrates, church rates, and like charges, which are natural charges on the tenant: (Earl of Tyrconnel v. Duke of Ancaster, 5 Ves. 500.) Any unusual covenants, or other matters contained in any such lease, should also be set forth.

Value of property should be correctly stated.]-The value